The State Department lawyer has a less-than-robust commitment to free speech.

By Betsy Woodruff —
September 20, 2012

Harold Koh, like most lawyers, will probably never be a household name. But his influence could reach into countless households, as he espouses a philosophy that could affect everyone who talks, writes, tweets, or updates his Facebook status once in a while. That’s because Koh is the top lawyer for the State Department, a potential Supreme Court nominee, the former dean of Yale Law School — and a skeptic of the American concept of free speech. And with a filmmaker having been taken from his home at midnight for questioning by federal probation officers, the wind is blowing Koh’s way.

A little background: Koh first came to prominence during his confirmation hearings. “Koh thinks we should bow to foreign rules and court decisions, and to United Nations treaties whether or not we have ratified them,” wrote Phyllis Schlafly in the lead-up to his confirmation. John Fonte wrote for National Review Online that the judicial philosophy Koh espoused, transnationalism, was “generally . . . not democratic.”

Why the fuss? Koh’s critics consider transnationalism — the idea that international law should inform how judges interpret American law (for instance, what “cruel and unusual” means), and that policymakers should in some cases craft laws to conform with international “norms” — a threat to American sovereignty, constitutionalism, and the rule of law. Koh is a devoted proponent of this agenda; he wrote that “one prominent feature of a globalizing world is the emergence of a transnational law, particularly in the area of human rights, that merges the national and the international.” Essentially, Koh argued that the human-rights laws of individual nations should reflect the international consensus of all upstanding nations.

In some ways, opponents of his confirmation should be pleasantly surprised, or can at least indulge in some schadenfreude. Koh, who called George W. Bush the “torturer-in-chief,” has staunchly defended President Obama’s drone strikes, which he once described as “extrajudicial killings.”

But it’s a different aspect of Koh’s pre-confirmation advocacy that is relevant to events over the last week. In the wake of the embassy riots, federal probation officers questioned Nakoula Basseley Nakoula, a California man purportedly involved in the production of the anti-Islamic film that has been blamed for causing the violence. The infamous press release from our embassy in Egypt and subsequent administration statements seemed to suggest that free speech is in conflict with a Muslim right not to be offended.

This is where Koh comes in. One of the reasons many conservatives opposed his confirmation was that he wrote a paper implying that the U.S. ought to take the same stance toward free speech as many European countries do, fining and imprisoning those who say things that are offensive to specific religious or ethnic groups. In a 2003 Stanford Law Review article called “On American Exceptionalism,” he argued:

Admittedly, in a globalizing world, our exceptional free speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet. In my view, however, our Supreme Court can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation.

He also wrote, “As American lawyers, scholars and activists, we should make better use of transnational legal process to press our own government to avoid the most negative and damaging features of American exceptionalism.”

“That’s a nasty little quote there,” says Steven Groves of the Heritage Foundation, who helped lead the attempt to block Koh’s confirmation, pointing out its implication: that if we just agreed that “free speech” means what Europeans say it means, we wouldn’t have to deal with rioting Islamists. Unfortunately, that would involve a less-than-robust commitment to the First Amendment, as Stuart Taylor Jr. argued in a piece for National Journal.

“Transnational law may sometimes trump the established interpretation of the First Amendment,” Taylor wrote. “This is the clear meaning of Koh’s writings, although he implied otherwise during his Senate confirmation hearing.”

And that new interpretation would probably condone the questioning of filmmakers who offend the religious feelings of others.

“Certainly there’s a clear connection between Koh’s desire to use international law as a vehicle for limiting the First Amendment rights of Americans and this recent action,” says Ed Whelan, president of the Ethics and Public Policy Center, referring to Nakoula’s questioning. He added that it’s hard to say whether Koh has influenced the State Department’s transnationalist bent or just fit nicely into its preexisting milieu.

Either way, “Harold Koh is not an aberration,” Whelan tells National Review Online. “His views are very commonplace on the left, in part because he’s a leader and in part because that’s the environment that he swims in. I don’t see it as surprising that a State Department that would have him as a legal adviser is not interested in a robust protection of First Amendment rights.”

Groves characterizes Koh’s positions as “Yes, yes, yes, we believe in free speech, but if you insult someone because of their race or their religion or because of their gender, we’re going to criminalize that and you can be fined and imprisoned for it.”

We’re not Europe yet, but that’s where Koh and his like-minded colleagues want to take us. “It’s certainly an agenda on the part of Koh and others to get there,” Whelan says. “Whether that will succeed depends on a lot of things, including this coming election.”

— Betsy Woodruff is a William F. Buckley Fellow at the National Review Institute.